Hanif Mohammad Alias Hanif Muhammad Alias Haniz Muhammad v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 890/2019

[2023] HKCFI 389

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 890 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 58-year-old national of Pakistan who had previously overstayed in Hong Kong twice when he was subsequently arrested and repatriated to his home country without raising any non-refoulement claim, but when he was again arrested by police on 2 September 2017 for remaining in Hong Kong without authorization of the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by a family in his home district over their long standing feud with his family which started in 1955 before he was born.

2.The Applicant was born and raised in Village Shamasabad, Shapur, Tehsil Hazro, District Attock, Pakistan where his grandfather back in 1955 was involved in a dispute with a Mirza family which led to a violent incident during which gun shots were fired from both sides causing deaths and injuries to members of both families, and which had since become a long running feud between the 2 families with constant violent conflicts and with serious allegations made against each side to the police and authorities.

3.The Applicant was born in 1964, and leaving school he worked as a welder, got married and raised a family with 2 children in his home district.

4.In order to keep out of the said family feud with the Mirza family, the Applicant in May 1997 left the country for Hong Kong to look for jobs and subsequently overstayed, and upon his arrest by the police he was repatriated to Pakistan on 7 February 1998.

5.Three months later in May 1998 the Applicant entered Hong Kong again but on a different passport bearing another identity and again overstayed, and was arrested by police more than 3 years later on 23 September 2001, for which he was convicted and sentenced to prison for 4 months, and was thereafter repatriated to Pakistan on 24 December 2001.

6.Upon returning to his home district, the Applicant learnt that the Mirza family had continued with their feud with his family, and one day in 2004 while he was on his way home from work, he was ambushed by 4 of their family members and was beaten with wooden sticks that he suffered cuts and bruises all over his body, and thereafter they even made false charges against him to the police that he was detained and interrogated, but was eventually released without charge.

7.One day in 2008 one of the Applicant’s brothers was kidnapped by some unknown men, and was only released after the family had paid a ransom, of which the Applicant suspected that the Mirza family was behind it, as thereafter his family had received threats from them that the same fate would happen to the Applicant.

8.On another occasion in 2014 while he was travelling with a neighbor on a motorcycle in his home village, the Applicant was shot at by an unknown man who missed him but hit his neighbor that they both fell from the motorcycle, and were subsequently brought by some pedestrians to the hospital for medical treatments, and while the Applicant was unable to recognize the assailant, he believed that the Mirza family was again behind the attack.

9.One day in May 2016 while the Applicant was working as a van driver when some members of the Mirza family tried to approach him, but when he saw some of them had pistols in their hands, he immediately drove his van away from the scene.

10.Fearing that the Mirza family was going to kill him, the Applicant fled from his home village to hide in Rawalpindi, and when he heard that the Mirza family were looking for him everywhere, he departed Pakistan in April 2017 for China, and from there he later sneaked into Hong Kong, and after his arrest by the police in September 2017, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

11.By a Notice of Decision dated 26 January 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

12.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Mirza’s family upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that in any event it was a private dispute between their 2 families without any official involvement without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 199 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Pakistan away from his home district in large cities such as Islamabad or Karachi where it would be difficult if not impossible for the Mirza family to locate him.

13.On 9 February 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 15 February 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 4 March 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

14.In its decision the Board found inconsistencies discrepancies and exaggerations in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from the Mirza family for leaving his country to come to Hong Kong, that there is no reliable evidence other than his own speculations of any real intention of them to seriously harm or kill the Applicant who had never done anything to fuel the long running feud between the 2 families started even before he was born, that in any event it was a private personal dispute between 2 families without any event the dispute between the Applicant and the  Mirza’s family without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.

15.On 1 April 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that he does not agree with the decision as he cannot go back to his home country where his life is still in danger but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

16.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

19.In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 10^th day of February 2023.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1